Friday, 31 July 2015

The Calais crisis: which Member State is responsible?

Steve Peers

Several thousand migrants are
living in poor conditions near Calais, many apparently intent on making it to
the UK. Their attempts to find passage via the Eurotunnel are severely delaying
travel on both sides of the border. Which country is responsible for them: the
UK or France?

At the outset, we should note
that this is in a way a clash between two different types of movement within
the EU. On the one hand, we have the free movement that the EU specifically
tries to encourage: the free movement
of goods in the lorries, persons in the trains, and transport services in
either context. On the other hand, we have what the EU calls ‘secondary’
movements of (potential) asylum-seekers, which it specifically tries to discourage. EU internal market law is
adopted to facilitate the first type of movement, while EU asylum law is
harmonised to reduce the incentive for the second type.

Of course, the migrants don’t
actually want to shut EU free movement down, since that would defeat their
whole purpose. They merely want the lorries to slow down long enough to stow
away on board, then continue on their journey – in effect bringing the two
types of movement together. It’s the government attempts to prevent this that
leads to near-gridlock.

But which of those governments is
responsible? Let’s examine the issue first from the migrants’ perspective, and
then from the free movement perspective. (While some consider the word
‘migrant’ offensive, I will continue to use it. In my view, it simply refers to
a category of people, like teachers or nurses. It would make sense to refer to
them as ‘asylum-seekers’ or ‘refugees’ only if it were clearly the case that
almost all of them had applied for asylum or qualify as refugees; the available
information doesn’t indicate this clearly enough. The word ‘migrant’ doesn’t
deny their humanity; it simply explains their situation.)

Immigration and asylum law

Some of the migrants have applied
for asylum in France, and so their position is governed by EU asylum law. This
includes the Dublin Regulation, which determines which Member State is
responsible for their application. That may not be France, but rather the
Member State which they first entered – if France can prove that they entered
there. If France cannot prove that another Member State is responsible, then it
must assume responsibility. The UK would only be responsible for their
applications if they have close family members in the UK, living there as
refugees or asylum-seekers.

In the meantime, while the
asylum-seekers are on French territory, the EU’s Directive on reception conditions for asylum-seekers applies. The EU Court of Justice has
specifically ruled, in a case involving France, that this Directive
applies to the State where asylum-seekers are currently located, even if the
Dublin rules say those asylum-seekers should be transferred to another Member
State. It only applies to that other Member State once the asylum-seekers are
actually transferred there. This ruling obviously applies a fortiori to asylum-seekers who simply want to travel to another
Member State and apply there instead. The whole point of the Dublin Regulation
is to deny asylum-seekers exactly that choice. Although the Regulation fails
epically in practice to stop asylum-seekers trying to choose the State they
would like to apply in, the Directive still applies to ensure minimum living
standards for asylum-seekers in the State they are present in.

What does that mean in practice?
The Directive requires the Member State where the asylum seekers are present to
ensure basic standards as regards welfare and accommodation, among other
things. It appears from press reports that these standards are not respected as
regards the migrants near Calais.

Furthermore, the latest EU Directive
on asylum procedures, which applied from last week, sets deadlines to deal with
asylum claims. That part of the Directive doesn’t apply until 2018, but it
could be argued in the meantime that the principle of effectiveness of EU law
(which the CJEU has frequently applied in immigration law cases) requires
asylum claims to be dealt with efficiently, not just ignored. As for the substance of asylum law, some press reports suggest that France gives asylum to Eritreans much less often than
the UK (and much of the rest of the EU). This may be due to a flawed
application of the EU’s Qualification Directive. If this is not being
fixed in the French courts by an asylum-seeker’s appeal or a judicial review by
NGOs, then the Commission should identify the specific error in interpretation of
the law and bring infringement proceedings against France.

But not all of those migrants
have applied for asylum. For those people, since it seems unlikely that any of
them are legal migrants, this must
mean that they are irregular migrants. Their position in France is therefore
governed by the EU’s Returns Directive, which specifies that the Member
States must issue irregular migrants with a return order and try to enforce
their expulsion to a country of origin or transit as soon as possible. The EU
Court recently ruled that Member States could not simply issue irregular
migrants with a fine and make no effort to remove them. It must equally follow
that Member States cannot turn a blind eye to their existence, when (as in the
Calais case) a large number of them are openly staying on Member States’
territory.

The Returns Directive does not create
an absolute obligation to remove irregular migrants. First of all, a Member
State can choose to regularise their position at any time. Secondly, if they
apply for asylum, EU asylum law applies, until the end of the asylum process,
when they are either recognised as needing protection or their application
fails its final appeal. In the latter case, the Returns Directive then applies
again. Thirdly, it may prove impossible in practice to remove them to their
State of origin or transit, because there is not enough proof of where they
come from. In that case, they remain in
a kind of limbo, unless the State chooses to regularise them. Irregular
migrants are entitled to emergency health care and essential treatment of
illness during their stay. As far as we can tell from press reports, it does
not appear that the French authorities are making any active effort to return
the irregular migrants in Calais to their countries of origin or transit
pursuant to the Directive.

Free movement law

The CJEU has ruled, in a case
involving France, that Member States have a responsibility to prevent
free movement of goods being disrupted by private individuals. While States
have a margin of discretion exactly how to deal with that private behaviour, it
is not unlimited. In that case, farmers’ groups had been vandalising lorries
full of other Member States’ produce for years on a regular basis, and many of
the perpetrators were known to the police. France was therefore liable for
doing nothing very effective to stop this. It was compensating the victims, but
this was not enough.

On the other hand, in the case of
Schmidberger, Austria was not liable
for allowing a disruption to trade by private protesters who briefly blocked a transit
route. According to the CJEU, the protesters’ right to demonstrate overrode the
free movement of goods, given that the disruption didn’t last very long.

What about industrial action?
This is also a separate source of the current restrictions on movement between
the UK and France. On this point, the CJEU has been quite critical of trade
union action that restricts free movement: in the controversial cases of Viking Line and Laval, it ruled that while EU law
recognized trade unions’ right to strike and take other collective action, these
rights were easily overruled by EU free movement rules. But those cases
concerned the freedom of establishment and free movement of services; the
current strikes in France affect the free movement of goods. An EU Regulation
adopted after the earlier French case states that while States have an obligation
to deal with private disruptions to the movement of goods, this is without
prejudice to the right to strike.

Applying these cases to the
current problems at the UK/France border, it’s not clear whether the
disruptions caused by strikes are an unjustifiable restriction on free movement.
The strikes seem only to concern pay and
conditions, whereas in Laval and Viking Line, while the disputes were also
indirectly about pay and conditions, they were mainly directed at shutting down
free movement due to perceived ‘social dumping’.

What about the disruptions linked
to the migrants’ attempts to travel to the UK? While EU law does recognize a right to asylum,
it’s possible to apply for that right in any Member State, and so it is not
necessary to travel to the UK to that end. The number of migrants would surely be
reduced if France applied its obligations to: process asylum applications; decide on Eritrean
claims correctly; and remove irregular migrants who had not applied for asylum. France must also

extend basic standards of welfare and housing to asylum-seekers, whether that acts as a 'pull' factor or not.

Is the UK liable in any way? The
UK does exercise border controls on French territory, pursuant to a treaty
between the two countries on ‘juxtaposed controls’, agreed in the context of
the Channel Tunnel. But the UK’s obligations under that treaty do not extend to
admitting asylum-seekers or other irregular migrants who want to use the tunnel
to travel to the UK. More broadly, the UK’s border checks in France don’t turn
any part of France into British territory, just as the reciprocal French border
checks in the UK don’t turn any bits of Kent French, or transfer St. Pancras
station to the Paris metro system.

So France is responsible for the
impact on free movement, due to its separate breaches of EU immigration and
asylum law. This shouldn’t be seen as a selfish or parochial conclusion; after
all, it’s not really radical to say that States are generally responsible for
what happens on their territory. That’s the normal rule of public international
law, and it’s linked to the basic principle of State sovereignty. The EU rules
in this case reflect that principle.

Having said that, allocating
responsibility does not as such solve the problem. It would be open to the
French government to denounce the treaty on juxtaposed controls, with a
negative impact on the UK. So it makes sense for the UK government to offer a contribution
to solve the problem, even if it is not obliged to do so. The government has
already accepted this principle, paying for the construction of a security
fence. And it would equally make sense to make a contribution as regards
immigration issues, for instance the costs of removal or basic support, linked
to a requirement to move to other parts of France to receive that support.

7 comments:

Using the term 'migrant' instead of 'refugee' is appropriate when Criteria for the Determination of Refugee Status (in Handbook and Guidelines onProcedures and Criteria for Determining Refugee Status) states that:

'A person is a refugee within the meaning of the 1951 Convention as soon as he fulfils the criteria contained in the definition. This would necessarily occur prior to the time at which his refugee status is "formally determined". Recognition of his refugee status does not therefore make him a refugee but declares him to be one. He does not become a refugee because of recognition, but is recognized because he is a refugee'.

This doesn't suggest that a person must be called refugee (and is a refugee) even prior to the time at which his refugee status is 'formally determined' by the responsible state (which is the case here)?

Does the Directive on reception conditions apply only to asylum seekers, thereby necessitating some sort of process to distinguish between asylum seekers and economic migrants beforehand, or does it apply to possible asylum seekers? In short, I guess my question is whether all of the migrants located in Calais are covered by the Directive.

The reception conditions Directive applies only to asylum-seekers. It is triggered once someone has made an application for asylum. So not everyone in Calais is covered by it. However, if the French government tried to return those who hadn't applied for asylum, I would expect more of them to apply for it.

State responsibility and individual responsibility. Our democratic representatives have said that they wish to move up more of state responsibility to a new level - EU.But the individuals that wants to move to greener pastures, have they checked if there are opportunities in their prospective reception state, or do they trust god and count that it will be fixed when they reach their goal? Otherwise they are making some interesting demands:I demand that you serve me, that which I could not serve myself in my original state (nation state, not psychological state).

My question is why they could not create prosperity in their original nation state? Is it EU bribes to the local dictators that put shackles around their ankles? For instance the initial Somali pirating was explained by depleted fish stocks due to EU fishing vessels outside the Somali coast, which was enabled by trade deals between EU and the Somali government thereby crashing the local economy.

Hi Steve,I see that in the first section of the EU Directive on reception conditions for asylum-seekers it states, paragraph 33 states: "In accordance with Articles 1 and 2 and Article 4a(1) of Protocol No 21 on the position of the United Kingdom and Ireland in respect of the Area of Freedom, Security and Justice, annexed to the TEU, and to the Treaty on the Functioning of the European Union (TFEU), and without prejudice to Article 4 of that Protocol, the United Kingdom and Ireland are not taking part in the adoption of this Directive and are not bound by it or subject to its application", therefore the UK is not required to apply this Directive.

I am wondering: Is the UK allowed to opt out of/ or simply not bound by all the EU directives adopted in the area of Freedom, Security and Justice? Is this the reason why the UK can for example opt out of refugee quotas and any similar future EU decisions of the sort on the European refugee crisis?

Thanks for your question. The UK can opt in or out of all EU laws in this area. It has opted into some, like the Dublin Regulation, but out of others, like the asylum-seeker relocation Decisions (ie 'refugee quotas'). There's a complication if it wants to opt out of a major amendment to something it's already opted into, in that case it might be removed from participation in the previous law. So far this hasn't happened but it might soon, as regards the Dublin rules if they are amended soon.